Appeals Court – Unpublished

Where a plaintiff argues that a judge erred (1) in failing to find a breach of the contract between the parties, (2) in refusing to enforce the contract for lack of specificity for a damages determination, (3) in declining to award benefit of the bargain damages and (4) in failing to find that the defendant’s activities supported a chapter 93A claim, so much of the judgment as relates to the breach of contract and covenant of good faith and fair dealing claims must be reversed, with the remainder of the judgment affirmed.

Where a judge ruled in favor of a defendant insurance company that paid some but not all of a physical therapy provider’s bills for treating patients insured by the defendant, a new trial must be ordered because of ambiguities in the judge’s findings.

Where a Superior Court judge dismissed a medical negligence action against a defendant physician who performed a thyroidectomy on the plaintiff, the judge did not err in refusing to instruct the jury on the combined effects of the defendant's negligence and the plaintiff's preexisting connective tissue disease.

Where, at the scene of a fatal collision between a pickup truck and a motorcycle, the intoxicated defendant was found in the back seat of the pickup truck and the driver's seat was empty, (1) the defendant’s conviction of vehicular homicide must be upheld despite his numerous claims of trial error but (2) the defendant's convictions of operating to endanger and OUI must be vacated, as they are duplicative of the conviction for vehicular homicide.

Where a judge denied the defendant’s request that his witness be permitted to remain in the courtroom after her testimony was completed, the decision to sequester the witness was within the judge’s discretion.

Where the defendant's delay in asserting his right to a speedy trial was due to the fact that he was unaware of the charge for more than 26 years, his pretrial motion to dismiss the complaint should have been allowed.

Where the defendant — who was found guilty of witness intimidation, attempt to commit a crime and threat to commit a crime — now raises a host of issues on appeal, only the judgment on the charge of threat to commit a crime should be vacated, with the remaining judgments affirmed.

Where a divorce judgment prohibited the mother from enrolling the children in any form of Christian education, organizations or religious instruction, that provision cannot be enforced absent evidence from the father that non-Jewish practices or beliefs would substantially harm the children.